Pursuant to Federal Rule of Appellate Procedure 26.1, petitioners Wind-
stream Corporation and Windstream Communications, Inc. state as follows:
Windstream Corporation is a publicly held corporation. No publicly held
corporation has a 10% or greater ownership interest in Windstream Corporation.
As relevant to this litigation, Windstream Corporation wholly owns numerous local
exchange carrier subsidiaries that operate throughout the United States, including
in rural areas.
Windstream Communications, Inc. is a wholly owned subsidiary of
Windstream Corporation; no other publicly held company has a 10% or greater
ownership interest in Windstream Communications, Inc. As relevant to this
litigation, Windstream Communications, Inc. is a local exchange carrier that offers
broadband and voice service.

B.
The FCC’s Failure To Provide a Revenue Recovery Mechanism Was Arbitrary, Capricious, and Inconsistent with Reasoned
Decisionmaking...................................................................................24

There are no prior appeals, and all related cases known to counsel
have been consolidated into this omnibus case except Accipiter Communica-tions, Inc. v. FCC (D.C. Cir. No. 12-1258). That case, which challenged the
Third Reconsideration Order in the administrative proceedings below (an
order not at issue in Windstream’s case or any of the other cases consoli-
dated before this Court), was dismissed by the D.C. Circuit on December 6,
2012. Additionally, as listed in Petitioners’ Joint Preliminary Brief at xxii, a
previous order arising from one of the administrative proceedings below is
before the Ninth Circuit in Ronan Telephone Co. et al. v. FCC (9th Cir. No.
05-71995).

Windstream1 seeks review of the FCC’s Second Order on Reconsideration in
its Connect America Fund proceeding, FCC Order No. 12-47, 27 FCC Rcd. 4648
(2012) (“Second Reconsideration Order”) (JA__-__), which is not addressed by
any of the other petitions in this consolidated case, as well as the underlying
USF/ICC Transformation Order, FCC Order No. 11-161, 26 FCC Rcd. 17663
(2011) (“Order” or “USF/ICC Transformation Order”) (JA__-__).
Windstream adopts the jurisdictional statement in Petitioners’ Joint Prelimi-
nary Brief, but adds the following: The USF/ICC Transformation Order was
published in the Federal Register on November 29, 2011. 76 Fed. Reg. 73,830.
Windstream timely sought reconsideration on December 29, 2011. JA__; see 47
C.F.R. §§ 1.4(b), 1.429(d). The FCC’s Second Reconsideration Order, which
finally disposed of Windstream’s petition, was published on May 29, 2012. 77
Fed. Reg. 31,520.
Windstream timely petitioned for review on July 27, 2012. The D.C. Circuit
transferred the case to this Court, which consolidated it with petitions for review of
the USF/ICC Transformation Order. This Court has jurisdiction under 47 U.S.C.
§402(a) and 28 U.S.C. §2342(1). Windstream participated below and is directly

Long-distance telephone companies use the networks of Local Exchange
Carriers (“LECs”) to connect their calls. They pay “originating access” charges to
the LEC on whose network a long-distance call begins and “terminating” access to
the LEC on whose network the call ends. In the USF/ICC Transformation Order,
the FCC reduced the default rates for terminating access, but provided a recovery
mechanism for LECs to make up some of the resulting lost revenue. The FCC
declined to reduce originating access charges, deferring that issue to a further rule-
making where, among other things, the FCC could consider an appropriate
recovery mechanism. In the Second Reconsideration Order, however, the FCC
announced that it had reduced originating access rates for intrastate Voice over
Internet Protocol (“VoIP”) calls. Unlike with terminating access charges, however,
it refused—without explanation—to provide an accompanying revenue recovery
mechanism. The issue presented is:
Whether the FCC’s decision to cut originating access rates for intrastate
VoIP traffic, without establishing a mechanism for recovering lost revenues or
explaining why a recovery mechanism was unnecessary, was arbitrary, capricious,
and/or inconsistent with reasoned decisionmaking.

The facilities of long-distance carriers (also called Interexchange Carriers or
“IXCs”) typically do not reach all the way to their customers’ premises. Accord-
ingly, to allow their customers to complete long-distance calls, IXCs use the local
telephone networks of Local Exchange Carriers (“LECs”) on both ends of the call.
NPRM ¶494(JA__). When a customer makes (“originates”) a long-distance call,
the LEC’s network is used to connect the customer to the IXC’s facilities.
Likewise, IXCs typically use a LEC’s network to reach the customer being called
(the “terminating” end of the call). LECs are required to terminate calls delivered
to them by IXCs. 47 U.S.C. §251(c)(2). And incumbent LECs (“ILECs”) like
Windstream are obligated to provide “equal access” to their networks for
originating calls, making them available to IXCs on the terms the ILEC affords its
own affiliates. See 47 U.S.C. § 251(g).
To compensate LECs for the use of their networks, IXCs pay “access”
charges, also called intercarrier compensation (“ICC”). “Originating” access
charges are paid to the LEC on whose network a long-distance call originates—i.e.,
where the caller is located. The caller generally is the LEC’s customer for local
telephone service but the IXC’s customer for long distance. Thus, for long-
distance calls, the IXC—not the LEC—has a billing relationship with the caller.

3Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 12
Pet’rs Preliminary Br. 16. As a result, compensation from IXCs is often the only
way LECs can recover the cost of originating long-distance calls.
On the other end of the call, the IXC pays “terminating” access charges to
the LEC on whose network the call terminates—i.e., where the called party is. As
the FCC recognized, “the most acute intercarrier compensation problems, such as
arbitrage” and billing disputes, historically have arisen in connection with termi-
nating rather than originating access. Order¶800(JA__).

B.

Interstate and Intrastate Access Charges

LECs are permitted to charge for originating and terminating access at
default or “tariff” rates set by regulators. The FCC sets default access charges for interstate calls, while state commissions historically have set rates for intrastate
calls. NPRM ¶494 n.697(JA__). Intrastate access rates, set by state regulators,
generally are significantly higher than interstate rates. NPRM ¶494(JA__). States
use the higher intrastate rates—which may be 13.5 cents per minute or more,
compared to interstate rates that can be less than one cent per minute—to subsidize
local telephone service, offsetting the below-market, regulated rates LECs must
charge some customers. See id.; Qwest Corp. v. FCC, 258 F.3d 1191, 1196 (10th
Cir. 2001).
Intrastate ICC revenues thus help offset the losses ILECs incur providing
service to high-cost rural customers (e.g., where the LEC might need miles of

4Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 13
poles and wires for a single customer). As “carriers of last resort,” ILECs are
required to serve those customers, but statutory and regulatory constraints limit
their ability to adjust rates to reflect the higher costs. See Order ¶862(JA__). ICC
has provided critical support, allowing ILECs to serve high-cost areas where there
is otherwise “no business case” to offer service at regulated rates. Id. ¶¶862, 948
& n.1916(JA__, __).

C.

VoIP Traffic

Traditionally, telephone traffic has traveled on the Public Switched
Telephone Network (“PSTN”) in Time-Division Multiplexing (“TDM”) format.
Pet’rs Preliminary Br. 6. More recently, some providers have begun to transmit
traffic in Internet Protocol (“IP”) format. A single call can be transmitted in
different formats as it traverses telephone networks: It may originate in TDM
format on one carrier’s network but be converted into IP by the time it terminates
on another (“TDM-IP” calls). Conversely, a call may begin in IP and end in TDM
format (“IP-TDM” calls). In these proceedings, the FCC classified both kinds of
calls as Voice over Internet Protocol (“VoIP”) traffic. Order ¶940(JA__); Second
Reconsideration Order ¶28 & n.69(JA__). This traffic is sometimes called “VoIP-
PSTN” traffic. Order ¶940(JA__).
From a cost-recovery standpoint, it makes no difference to an originating
LEC that a TDM call is later converted into IP on another carrier’s network. The

5Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 14
cost of originating the call is the same. Indeed, the LEC has no reliable way of
knowing that a call is converted into IP after it leaves the LEC’s hands. Rather, to
determine what portion of the traffic it originates is VoIP traffic, the LEC must rely
on IXCs to report those figures. See Order ¶948 n.1917(JA__) (citing LEC
comments).
IXCs have traditionally paid intrastate originating access rates for intrastate
VoIP calls. Very few (if any) disputes have arisen, especially with respect to
TDM-originating calls. Second Reconsideration Order ¶33(JA__). Like terminat-
ing access generally, however, VoIP terminating access has been the subject of
significantly more “disputes and instances of non-payment or under-payment.” Id.

II.

Proceedings Below

A.

The Notice of Proposed Rulemaking

On February 9, 2011, the FCC issued its Notice of Proposed Rulemaking
(“NPRM”), proposing to reduce or eliminate per-minute ICC in the long term.
NPRM ¶40(JA__). The FCC emphasized, however, that it would “avoid sudden
changes or ‘flash cuts’ in [its] policies, acknowledging the benefits of measured
transitions that enable stakeholders to adapt to changing circumstances and
minimize disruption.” Id. ¶12(JA__); see id. ¶17(JA__) (“We do not propose any
‘flash cuts,’ but rather suggest transitions and glide paths that . . . facilitate adapta-
tion . . . .”); id. ¶533(JA__) (“[I]t is important for any transition to be gradual

6Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 15
enough to enable the private sector to react and plan appropriately.”). To that end,
the NPRM “propose[d] to adopt a mechanism for recovery” of lost revenues to
mitigate the impact of reducing ICC. Id. ¶43(JA__); see id. ¶34 fig.3(JA__)
(transitional step of “[a]dopt[ing] framework for long-term ICC reform, including
glide path and recovery mechanisms”).
The NPRM expressed the FCC’s intent to encompass VoIP traffic in
particular in its rulemaking. NPRM ¶608(JA__). Because the FCC had previous-
ly declined to address VoIP ICC, “disputes increasingly have arisen among carriers
and VoIP providers regarding intercarrier compensation for VoIP traffic.” Id.
¶610(JA__). According to the NPRM, different carriers took diametrically op-
posed positions on VoIP access charges, with some contending that VoIP “traffic is
subject to the same intercarrier compensation obligations as any other voice traf-
fic,” while “other carriers contend no compensation is required.” Id.

7Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 16
levels over about two years, then transitioned to a uniform rate of $0.0007 per
minute over the following three years. Id. at 11(JA__).
Those proposed reductions were “inextricably linked” to accompanying
revenue recovery mechanisms: Carriers would be “able to reduce their reliance on
implicit support from intercarrier compensation” by turning to “support from new
explicit mechanisms.” ABC Plan Framework 9(JA__). Those included an “access
replacement mechanism” allowing carriers to recover part of their lost ICC revenue
from the universal service fund (“USF”). Id. The “access replacement mechanism
is necessary to ensure that the intercarrier compensation reforms do not jeopardize
the operations of broadband providers that rely on intercarrier compensation
revenues for implicit support of networks in high-cost areas.” Id. at 12(JA__).
The ABC Plan proposed not reducing originating access charges immediate-
ly, instead providing that they be capped at current levels. As the Plan’s propo-
nents explained, originating access did not present the same pressing problems as
terminating access because “most existing arbitrage schemes . . . take advantage of
widely disparate terminating rates in different jurisdictions.” Joint Comments of
AT&T et al. 22 (Aug. 24, 2011) (JA__) (emphasis added). If the FCC were to
reduce originating access rates, it would “need to address rate rebalancing through
potential end-user rate increases and additional recovery from the transitional
access replacement mechanism.” Id. at 26(JA__). Those demands might “make it

8Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 17
more difficult to keep the access replacement fund at a manageable size” and
“threaten the USF budget.” Id. at 22, 27(JA__, __). “The need to address such
recovery,” the Plan’s proponents concluded, “is an important reason why the
Commission should not reform originating access charges at this time.” Id. at
27(JA__).

C.

The USF/ICC Transformation Order

1.
The USF/ICC Transformation Order targeted “bill-and-keep”—where
each carrier bills its own customers and keeps the full amount without paying
compensation to other carriers—as the eventual “default methodology” for ICC,
which would eliminate ICC altogether. Order ¶736(JA__); see Pet’rs Preliminary
Br. 34. But the Order provided for a staged transition, “limiting reductions at this
time to terminating access rates,” because that is “where the most acute intercarrier
compensation problems, such as arbitrage, currently arise.” Id. ¶800(JA__)
(emphasis added). The Order largely “adopt[ed] the transition proposed in the
ABC Plan.” Id. ¶801 n.1497(JA__). Terminating charges thus will be reduced
from intrastate to interstate levels in two steps, followed by a multi-year transition
to a flat rate of $0.0007/minute, and eventually to bill-and-keep (i.e., zero). Id.
¶¶739, 800-804 & fig.9(JA__, __-__).2 That gradual transition was necessary “to

2 The Order adopted slightly different transitions and recovery mechanisms for price-cap LECs and rate-of-return LECs. We focus on price-cap LECs like Wind-stream, although the distinctions are largely irrelevant here.

9Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 18
avoid flash cuts and enabl[e] carriers sufficient time to adjust to marketplace
changes and technological advancements.” Id. ¶802(JA__).
The Order established a concomitant two-pronged mechanism to allow
ILECs to recoup a portion of lost terminating ICC revenues (called the “Eligible
Recovery”). Order ¶ ¶847-932(JA__). First, ILECs may add an Access Recovery
Charge (“ARC”) to end users’ monthly bills, subject to prescribed caps. Id.
¶852(JA__). Second, ILECs may receive explicit support from the Connect Amer-
ica Fund (“CAF”) to the extent their Eligible Recovery exceeds the permissible
ARC. Id. ¶¶853, 917-920(JA__, __-__).3 The FCC opened the recovery mecha-
nism to all ILECs, recognizing that “regulatory constraints on their pricing and ser-
vice requirements otherwise limit their ability to recover their costs.” Id.
¶862(JA__). As carriers of last resort, ILECs “have limited control over the areas
or customers that they serve, having been required to deploy their network in areas
where there was no business case to do so absent subsidies, including the implicit
subsidies from intercarrier compensation.” Id. Denying recovery, the FCC de-
clared, “would represent a flash-cut for price-cap LECs, which isinconsistent with
our commitment to a gradual transition and could threaten their ability to invest in
extending broadband networks.” Id. ¶890(JA__).

3 The CAF was established by the USF portion of the Order to promote broadband deployment. See Order ¶¶115-120(JA__-__); Pet’rs Preliminary Br. 26-27. Price-cap ILECs accepting ICC recovery from the CAF must use that support to build and operate broadband networks. Order ¶918(JA__).

10Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 19
Consistent with the ABC Plan, the Order stated repeatedly that it was not
reducing originating access charges, explaining that terminating access was “the
principal source of arbitrage problems today” and that the FCC’s “concerns . . .
with respect to network inefficiencies, arbitrage, and costly litigation are less
pressing with respect to originating access.” Order ¶¶35, 777(JA__, __); see also id. ¶¶653, 739, 764, 778, 800, 818, 922, 928, 1296-1298, 1301(JA__, __, __, __,
__, __, __, __, __-__, __). Deferring originating access reductions also helped
“manage the size of the access replacement mechanism.” Id. ¶800(JA__).
The FCC also found that the comments before it did “not provide a sufficient
basis . . . to proceed at this time” with a recovery mechanism for originating access.
Order ¶1301(JA__). The FCC issued a Further Notice of Proposed Rulemaking
(“FNPRM”) “seek[ing] comment on th[e] final transition for all originating access
charges.” Id. ¶1298(JA__); see id. ¶¶ 1297-1305(JA__-__) (relevant section of
FNPRM). For the time being, the FCC capped interstate and intrastate originating
access rates for price-cap LECs at existing levels. Id. ¶800 n.1494(JA__).
2.
Focusing on VoIP traffic in particular, the FCC opined that there were
“significant billing disputes and litigation,” with many providers paying less-than-
full ICC rates or even nothing at all. Order ¶937-938(JA__-__). In response, the
FCC immediately set the default access rates for toll VoIP traffic, whether inter- or

11Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 20
intrastate, “equal to [the] interstate access rates applicable to non-VoIP traffic.” Id.
¶943-944(JA__-__).
The FCC did not retreat from its repeated statements that it was addressing
terminating access only, leaving originating access for another rulemaking. Nor
did it suggest that its rationales for deferring originating access reductions, see p.
11, supra, did not apply to VoIP originating access. To the contrary, when
addressing VoIP access charges, the Order consistently referred to terminating
access: Every example of VoIP ICC arbitrage, litigation, and confusion involved
terminating access.4 So did the FCC’s examples of how VoIP ICC would work
under the Order.5
The Order’s only mention of originating access specific to VoIP came in one
sentence stating that, under the new rules, “toll VoIP-PSTN traffic will be subject
to charges not more than originating[FN] and terminating interstate access rates.”
Order ¶961(JA__). The appended footnote clarified that “originating access
charges” would apply “in this context, subject to the phase-down and elimination

4 See Order ¶938(JA__) (Some “terminating carriers state that they receive no in-tercarrier compensation payments at all for [VoIP] traffic,” while “some providers cite asymmetries in payments where . . . some VoIP providers’ wholesale carriers charge full access charges while refusing to pay them to the terminating LEC.”) 5 See Order ¶942(JA__) (“We . . . adopt a symmetrical framework for VoIP-PSTN traffic, under which providers that benefit from lower VoIP-PSTN rates when their end-user customers’ traffic is terminated” on others’ networks “also are restricted to charging the lower VoIP-PSTN rates when other providers’ traffic is terminated” on their networks.).

12Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 21
of those charges pursuant to a transition to be specified in response to the FNPRM.” Id. ¶961 n.1976(JA__) (emphasis added).

D.

Proceedings on Reconsideration

1.

Windstream’s Petition for Reconsideration or Clarification

After the Order’s release, some carriers insisted that the Order reduced both
terminating and originating access rates for intrastate VoIP traffic, despite the
FCC’s repeated statements that it was “limiting reform to terminating access
charges” and “need[ed] to further evaluate the timing, transition, and possible need
for a recovery mechanism” for originating access. Order ¶739(JA__).
Windstream (and others) petitioned the FCC to clarify “that the Order does
not apply to, and is not intended to displace, intrastate originating access rates for
PSTN-originated calls that are terminated over VoIP facilities” (or to reconsider
that position). Petition for Reconsideration and/or Clarification 21 (Dec. 29, 2011)
(“Windstream Petition”) (JA__). Windstream explained that nearly all disputes
over VoIP ICC involved terminating access, not originating access. Id. at
24(JA__). Thus, as with non-VoIP traffic, it was appropriate to address only
terminating access rates now and defer originating access issues. Moreover, the
FCC had conceded it lacked a sufficient record regarding how to structure changes
to originating access and any accompanying recovery mechanism. Id. at 22-
23(JA__-__). There was no reason to carve out intrastate VoIP calls from the

13Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 22
Order’s repeated and unqualified statements that it was not reducing originating
access rates. Id. at 24(JA__).
The petition argued that “flash-cutting one category of intrastate originating
access rates to interstate levels” would “conflict with the Commission’s goal of ‘a
measured, predictable transition’ and ‘transitional recovery’ for lost access
revenues.” Windstream Petition 27(JA__) (quoting Order ¶917). “[A]t the very
least,” the petition urged, the FCC “would need to permit LECs” a “mechanism to
recover lost originating access revenues.” Id. at 28(JA__).
Even carriers that opposed Windstream’s petition recognized the need to
avoid a disruptive flash-cut. AT&T urged that all VoIP traffic should be subject to
interstate originating access rates, but “agree[d] with Windstream . . . that LECs
should be permitted to use the recovery mechanism to recover access revenues that
are lost as a result of” that change. AT&T Comments 38-39 (Feb. 9, 2012) (JA__-
__). Verizon similarly acknowledged Windstream’s “legitimate concern” over
revenue cuts “not accounted for in the USF-ICC Transformation Order’s access
revenue recovery mechanisms.” Verizon Ex Parte 1 (Mar. 16, 2012) (JA__). 2.

The Second Reconsideration Order

The FCC denied Windstream’s petition. Second Reconsideration Order
¶¶27-42(JA__-__). The FCC acknowledged that, in discussing VoIP ICC, the
Order gave examples only of terminating charges. Id. ¶31(JA__). But it stated

14Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 23
that the Order’s one “reference to both ‘originating and terminating’ interstate
access rates” “provide[d] clarity” that the new VoIP ICC framework applied to
originating as well as terminating access. Id. ¶31 n.86(JA__) (citing Order ¶961); see pp. 12-13, supra. The FCC denied that the Order’s “general intent to address
reductions to originating access” at a later date (and repeated statements to that
effect) applied to VoIP traffic. The FCC asserted that it adopted a “distinct”
framework for VoIP “based on its findings specific to that traffic.” Id. ¶31(JA__).
The FCC noted Windstream’s argument that “setting default rates equal to
intrastate originating access [is] necessary to avoid ‘flash cuts’ or ‘reductions’” in
ICC. Second Reconsideration Order ¶32(JA__). But it asserted that the argument
“assume[d] that LECs were receiving intrastate originating access for intrastate toll
VoIP traffic under the status quo”—an “assumption . . . not reflected in the USF/ICC Transformation Order itself,” which was premised on the contrary belief
that all VoIP ICC “was widely subject to dispute and varied outcomes.” Id.
The FCC nonetheless conceded that the premise it attributed to the prior
Order was erroneous, and that Windstream was factually correct: “[M]arketplace
evidence in the record on reconsideration demonstrate[d] the accuracy of that
position in many cases,” and numerous commenters had shown they would
“experience annual reductions in originating access revenues” if intrastate VoIP
originating access were cut to interstate levels. Second Reconsideration Order

15Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 24
¶¶32-33(JA__-__). There were also “fewer disputes and instances of non-
payment or under-payment of origination charges billed at intrastate originating ac-
cess rates . . . , particularly for calls that originated in TDM format.” Id. The wide-
spread dispute noted in the prior Order was limited to terminating access. See id.
Despite admitting that the Order’s premise regarding the status quo for VoIP
access charges was erroneous, the FCC declined to change course. Instead, it
amended its rules to state that intrastate VoIP calls are subject to interstate
originating access rates. Second Reconsideration Order App. A(JA__) (amending
47 C.F.R. §51.913(a)(1)). At the same time, the FCC temporarily suspended the
rate reduction, allowing LECs to resume charging intrastate originating access
rates until July 2014—at which point those rates would again be flash-cut to
interstate levels. Id. ¶35(JA__). That suspension was prospective only, leaving
unredressed the six months—from the original Order’s effective date until the
suspension took effect—during which intrastate VoIP originating access rates had
already been flash-cut to interstate rates. See id. ¶52(JA__).
The FCC also refused Windstream’s request that the agency at least provide
a mechanism for LECs to make up lost VoIP originating access revenues, as it had
done when cutting terminating access rates. It offered no explanation other than to
state, in one sentence of a 23-line footnote, that it did “not adopt the Frontier-
Windstream Petition’s proposal that, ‘the Commission, at the very least, would

16Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 25
need to permit LECs to use the recovery mechanism to recover lost originating
access revenues.’” Second Reconsideration Order ¶35 n.97(JA__). Immediately
afterward, the FCC added that “[r]elated issues, such as advocacy regarding the
elimination of equal access obligations due to reduced originating access revenues
are more appropriate for consideration in the context of a rulemaking proceeding
or a forbearance petition.” Id. The FCC did not dispute that the Order and Second
Reconsideration Order were themselves part of a rulemaking proceeding.

SUMMARY OF ARGUMENT

Throughout these proceedings, the FCC emphasized the need for gradual
transitions, avoiding flash-cuts, and providing mechanisms for ILECs to recover
losses that result when access charges are cut to interstate rates—particularly given
ICC’s role in supporting service for high-cost (e.g., rural) customers. For termi-
nating access, the FCC adhered to those principles, pairing gradual reductions in
terminating rates with a revenue recovery mechanism. For originating access
generally, the FCC applied those principles, declining to cut intrastate originating
access until it could develop, in another proceeding, sufficient information to
assess a recovery mechanism.
A.
But the FCC abandoned those principles with respect to originating
access for intrastate VoIP calls, subjecting them to an unexplained flash-cut. The
FCC’s original Order did not justify that result. In fact, the Order did not even

17Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 26
appear to address VoIP originating access, much less make findings specific to it.
The FCC eventually conceded that its rationale for immediate reform of
terminating access (that it was rife with disputes) was absent for VoIP originating
access. And the FCC nowhere justified immediately reducing VoIP originating
access rates, rather than addressing them later with originating access generally. A
more obvious failure to provide the reasoned decisionmaking required by the
Administrative Procedure Act (“APA”) is hard to imagine.
B. The FCC’s refusal to provide a revenue recovery mechanism to
compensate for reductions to originating access rates for VoIP fares no better. The
FCC recognized the critical role of ICC in supporting high-cost customers. It then
slashed ICC revenues for VoIP originating access. But, unlike with terminating
access, the FCC provided no mechanism to allow ILECs to mitigate the revenue
losses that resulted. And it offered no reason for that omission. The FCC’s sole
explanation was that it was “not adopt[ing]” a recovery mechanism. Under the
APA, however, an agency cannot simply announce its decision; it must offer a
reasoned rationale for its chosen result. The FCC failed to do so here.

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The FCC failed here on all counts. It gave no explanation in its original
Order for flash-cutting intrastate VoIP originating access rates to much-lower
interstate rates. Indeed, the Order and accompanying rules—which the FCC felt
compelled to amend in the Second Reconsideration Order—did not make clear that
the FCC even had taken such a step. Nor did the FCC explain why it was flash-
cutting VoIP originating access with no means of offsetting lost revenue, even
though it subjected terminating access to a gradual transition with a recovery
mechanism that cushions revenue losses. The FCC compounded its error on
reconsideration. While clarifying that it intended to cut VoIP originating access
rates, the FCC again failed to explain why LECs should be denied the same transi-
tional glide path—with accompanying opportunity to recover lost revenue—that
the FCC considered to be essential when reducing terminating access charges.

A.

The FCC Failed To Justify Its Decision To Reduce Originating Access Rates for Intrastate VoIP

The heart of the “reasoned decisionmaking” required by the APA is the
agency’s explanation of what it did and why. Here, the FCC provided no such
explanation for reducing intrastate VoIP originating access rates to interstate
levels.
1. For terminating access, the FCC found that widespread arbitrage
problems and billing disputes justified its decision to fix rates at interstate levels,
using a multi-stage phase-down that included a mechanism for recovering lost

20Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 29
revenues. Order ¶739(JA__). For originating access, the FCC found no such
grounds and found it lacked sufficient information to create a recovery mechanism;
it therefore declined to reduce intrastate originating access rates. Id. ¶¶35,
777(JA__, __). But the FCC, with no rationale, imposed a flash-cut reduction on
one type of originating access—VoIP originating access—reducing those rates to
interstate levels with no recovery mechanism. That unexplained trajectory cannot
be sustained under the APA. Indeed, it was far from clear that the Order had
reduced VoIP originating access. The Order’s substantive discussion of VoIP
access charges revolved entirely around terminating access. See pp. 12-13, nn. 4-
5, supra. Originating access was mentioned just once—and there the FCC de-
clared that VoIP originating access charges would be “phase[d]-down” in the
future “pursuant to a transition to be specified” in another rulemaking. Order ¶961
& n.1976(JA__); see pp. 12-13, supra. It is hard to read that as saying the FCC
was consciously choosing to flash-cut VoIP originating rates.
The FCC has claimed that the Order’s language discussing VoIP generally
(and accompanying rule) was broad enough to encompass VoIP originating access
charges. See Second Reconsideration Order ¶31 nn.86-87(JA__); pp. 14-15, supra. But APA review is not an exercise in linguistic possibilities. The “agency
must cogently explain why it has exercised its discretion in a given manner,” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48

21Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 30
(1983) (emphasis added), by “provid[ing] a reasoned explanation for its action,” Judulang, 132 S. Ct. at 479. The Order’s failure even to state clearly that the FCC
was reducing VoIP originating access rates forecloses any conclusion that the
Order adequately spelled out why the FCC was doing so.
Nor does the Order reconcile its (putative) decision to reduce VoIP origi-
nating access with the FCC’s repeated statements that any action on originating
access was being deferred to a further rulemaking proceeding. It was necessary to
postpone originating access reform, the Order stated, because the submitted
comments did “not provide a sufficient basis . . . to proceed at this time”; the FCC
thus requested additional comments on the appropriateness of a revenue recovery
mechanism for originating access as well as “how such recovery should be imple-
mented.” Order ¶1301(JA__); see p. 11, supra. The Order nowhere explains how
the record was nonetheless sufficient to reduce VoIP originating access rates.
2.
The FCC’s attempted explanation in the Second Reconsideration
Order exacerbated the error. The FCC asserted that the initial Order’s general
statements about deferring originating access reform did not apply to VoIP because
the Order’s VoIP discussion was based on “findings specific to that traffic.”
Second Reconsideration Order ¶31(JA__). But the Order did not contain any
findings specific to VoIP originating access. The Second Reconsideration Order
therefore construed the FCC’s prior Order as finding that VoIP ICC generally was

22Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 31
subject to dispute, adding that the FCC “did not reach a different conclusion in the
case of originating access.” Id. ¶32(JA__). But that does not constitute a
determination that originatingVoIP (and not just terminating) was in fact the
subject of dispute. Neither Order identifies any determination to that effect.
And the proceedings on reconsideration made clear that any such determina-
tion would have been incorrect. Commenters on both sides agreed that, as with
non-VoIP or traditional telephony, VoIP originating access did not present the
same problems as terminating access (especially for calls originated on a TDM
network). Windstream explained that “the vast majority” of VoIP ICC disputes
concerned “the termination of VoIP-PSTN calls.” Windstream Petition 24(JA__).
And Verizon (which opposed Windstream’s petition) concurred that “[b]efore the Order, intercarrier compensation disputes were rare—or even non-existent—with
respect to intrastate originating access charges for TDM-IP calls.” Verizon Ex
Parte, White Paper 7 (Mar. 23, 2012) (JA__) (emphasis added).
The FCC therefore found on reconsideration that “there were fewer disputes
and instances of non-payment or under-payment of . . . intrastate originating access
rates for intrastate toll VoIP traffic than was the case for terminating charges for
such traffic.” Second Reconsideration Order ¶33(JA__). That is precisely the
same conclusion the FCC reached for non-VoIP traffic—that terminating access
was the “principal source” of ICC problems, while “concerns . . . are less pressing

23Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 32
with respect to originating access.” Order ¶¶35, 777(JA__, __). For that very
reason, the FCC deferred any change to non-VoIP originating access. Id. ¶777
(JA__). But it failed to “proffer[] an explanation for why [VoIP originating
access] should be treated differently.” Prometheus Radio Project v. FCC, 373
F.3d 372, 411 n.41 (3d Cir. 2004), cert. denied, 545 U.S. 1123 (2005). Instead,
confronted with the patent error in its prior assumption that VoIP originating
access—like terminating access and unlike originating access generally—was rife
with dispute, the FCC retreated to vague platitudes about the need to “mov[e] away
from reliance on ICC revenues.” Second Reconsideration Order ¶35(JA__). But
the desire to move away from ICC revenues applies equally to non-VoIP traffic. See Order ¶736(JA__). It provides no basis for singling out VoIP originating
access for a flash-cut reduction before the rulemaking process on originating
access has run its course.

B.

The FCC’s Failure To Provide a Revenue Recovery Mechanism Was Arbitrary, Capricious, and Inconsistent with Reasoned Decisionmaking

1.
In the NPRM and the USF/ICC Transformation Order, the FCC
repeatedly emphasized its “commitment to a gradual transition” toward bill-and-
keep and corresponding opposition to any “flash-cut” that might “threaten [LECs’]
ability to invest in extending broadband networks.” Order ¶890(JA__); NPRM
¶12 (“we intend to avoid sudden changes or ‘flash cuts’”), ¶17 (“We do not

24Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 33
propose any ‘flash cuts,’ but rather suggest transitions and glide paths . . . .”)
(JA__, __).6 Correspondingly, when the FCC reduced terminating access charges,
it emphasized the need for a recovery mechanism to offset the resulting revenue
loss. Order ¶858(JA__) (“Predictable recovery during the intercarrier compen-
sation reform transition is particularly important to ensure that carriers ‘can
maintain/enhance their networks while still offering service to end-users at reason-
able rates.’”). That recovery mechanism is critical, the Order recognized, because
statutory and regulatory constraints prevent ILECs from raising end-user rates to
compensate for decreased ICC revenues. Id. ¶862-863(JA__-__); p. 10, supra.7
The FCC thus paired reductions in terminating access rates with a contemporane-
ous recovery mechanism.
Consistent with those principles, Windstream urged the FCC that, if it cut
VoIP originating access rates, it should provide a transitional mechanism allowing

6 See also Order¶802 (“transition periods strike the right balance between our commitment to avoid flash cuts and enabling carriers sufficient time to adjust”), ¶809 (“a flash cut would entail significant market disruption”), ¶870 (“commit-ment to a gradual transition with no flash cuts”), ¶875 (“we are committed to a gradual transition with sufficient predictability to enable continued investment”), ¶935 (“we are mindful of the need for a measured transition for carriers that receive substantial revenues from intercarrier compensation”) (JA__, __, __, __, __). 7 That concern is acute for originating access: Because the IXC, not the originating LEC, has a billing relationship with the caller for long-distance traffic, the LEC often has no way to recover offsetting revenues from the customer initiating the call. See pp. 3-4, supra.

25Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 34
LECs to recover lost revenue. Windstream Petition 28(JA__). The FCC’s answer
was “No,” unaccompanied by any reason for that decision. Instead, the FCC
simply announced, in a single sentence, that it “d[id] not adopt the . . . proposal.”
Second Reconsideration Order ¶35 n.97(JA__); pp. 16-17, supra.
That non-explanation was legally deficient. “[A]n agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.” State Farm, 463
U.S. at 50. But here “the agency submitted no reasons at all” for its decision to
deny a recovery mechanism. Id. The FCC’s single sentence that it “d[id] not
adopt” such a mechanism provides no insight into “the determinative reason for the
final action taken.” Camp v. Pitts, 411 U.S. 138, 143 (1973). “[S]o conclusory a
statement cannot substitute for a reasoned explanation.” Am. Radio, 524 F.3d at
241; see State Farm, 463 U.S. at 48 (agency action arbitrary where analysis of
significant alternatives “was nonexistent”).
2.
The absence of any explanation for refusing a recovery mechanism for
VoIP originating access is particularly stark given the FCC’s rationale for
declining to reduce originating access charges generally: Recognizing the need to
provide a gradual transition with offsetting revenue, the FCC declined to cut non-
VoIP originating access because (a) it lacked sufficient information to properly
consider and develop an originating access recovery mechanism and (b) budgetary
constraints might make it difficult to fund an adequate mechanism at this time.

26Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 35
Order ¶¶739, 1301(JA__, __);p. 11, supra. Rather than reduce originating rates
now without a recovery mechanism, the FCC deferred both questions until it could
resolve them together.
But “the same rationale also applies” to VoIP originating access. Promethe-us, 373 F.3d at 405. The FCC recognized that LECs currently receive intrastate
originating access charges for VoIP traffic and that, as a result, a flash-cut to
interstate levels will impose significant revenue losses. See pp. 15-16, supra.
Those losses threaten to impair LECs’ ability not only to invest in broadband net-
works, but also to maintain existing voice service in some high-cost areas. Even
carriers opposing Windstream’s petition for reconsideration recognized that poten-
tial impact, with AT&T “agree[ing] . . . that LECs should be permitted to use the
recovery mechanism to recover access revenues that are lost as a result of assessing
only interstate originating access charges.” AT&T Comments 39(JA__).
The FCC could have allowed ILECs to participate in a recovery mechanism
(as the FCC provided for terminating access). Or it could have deferred any
reduction in VoIP originating rates until a proper recovery mechanism could be
developed (as the FCC did for originating access). At the very least, the FCC was
required to “engage the arguments raised before it,” NorAm, 148 F.3d at 1165,
“consider [those] responsible alternatives to its chosen policy and . . . give a
reasoned explanation for its rejection of such alternatives,” Am. Radio, 524 F.3d at

27Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 36
242 (quotation marks omitted). But “the Commission never explain[ed] why” its
policy of avoiding disruptive flash-cuts and pairing rate reductions with recovery
decisions “should not also be reflected” in its approach to intrastate originating
access for VoIP calls. Sinclair Broad. Grp., Inc. v. FCC, 284 F.3d 148, 164 (D.C.
Cir. 2002). That failure is particularly perplexing given that, from the originating
LEC’s perspective, TDM-IP VoIP calls are indistinguishable from TDM calls: On
the LEC’s network they are TDM calls; they are converted to IP after they leave
the LEC’s network, an event the LEC cannot even detect. See pp. 5-6, supra. The
absence of reasoned decisionmaking on this issue is unmistakable.
The FCC’s failure to justify its decision, however, is not inexplicable. In
fact, the agency never contemplated that its original Order would cut VoIP origi-
nating rates. The Order certainly did not attempt to justify that action. Only on re-
consideration did the FCC declare that the Order had done so—a pronouncement
that prompted the FCC to revise its rules to reflect the change. See p. 16, supra.
By that point, the FCC may have believed expanding the Order’s recovery
mechanism to cover VoIP originating access too expensive. But “cheapness alone
cannot save an arbitrary agency policy.” Judulang, 132 S. Ct. at 490. If the FCC
could not provide an adequate recovery mechanism, that militated in favor of
deferring reductions to VoIP originating access rates until the FCC could devise
one, as the FCC did for non-VoIP originating access. The Second Reconsideration

28Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 37
Order’s failure even to consider that alternative is the paradigm of unreasoned
decisionmaking. See State Farm, 463 U.S. at 48.
3.
It is no answer that the FCC, on reconsideration, permitted LECs to
resume charging intrastate rates on a temporary basis. See Second Reconsideration
Order ¶35(JA__);p. 16, supra. That left in place the FCC’s arbitrarily imposed
flash-cut to originating access for the six months between the original Order and
the suspension’s effective date. The FCC’s temporary stay, moreover, did nothing
more than kick the flash-cut further down the road. Come July 2014, Windstream
and other LECs will again be subject to an abrupt reduction in ICC charges. The
FCC provided no justification for that bizarre flash-cut/flash-back/flash-cut
approach.
Nor can the FCC argue that Windstream’s objections are premature because
the FCC may consider a recovery mechanism as part of the FNPRM. The rate cut
ordered here “must rise or fall [based] upon the FCC’s articulated policies at the time of the order.” Nat’l Ass’n of Broadcasters v. FCC, 740 F.2d 1190, 1201
(D.C. Cir. 1984) (emphasis added). It cannot be salvaged based on speculation that
the FCC might later reverse course and adopt a recovery policy that, had it been
adopted in the first place, might have rendered the decision defensible.
Even dividing VoIP originating access rate reductions and revenue recovery
into separate proceedings would be arbitrary and unreasoned. For terminating

29Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 38
access, the Order paired gradual rate reductions with an explicit recovery mecha-
nism. For non-VoIP originating access, the Order deferred rate reductions to
permit consideration of reductions and recovery at the same time. See pp. 9-11, supra. But for VoIP originating access, the FCC inexplicably separated the two,
ordering a flash-cut in one proceeding while implying recovery might be addressed
in another. “The Commission’s failure to provide any explanation for this glaring
inconsistency is without doubt arbitrary and capricious,” and reinforces the need to
set aside the flash-cut here. Prometheus, 373 F.3d at 411.
That “wait-and-see” approach to recovery would also defy the FCC’s recur-
ring emphasis on the need for predictability in future ICC revenue streams. For
terminating access, the FCC provided that ILECs could recoup revenues up to the
“Eligible Recovery” limit. See p. 10, supra. The FCC emphasized that its
recovery mechanism allowed price-cap LECs “to determine at the outsetexactly
how much their Eligible Recovery will be each year,” so as to “provide[] the
necessary predictability” for carriers to invest in their networks. Order ¶879 &
n.1697(JA__) (emphasis added).8 Here, the FCC never offered any explanation for
abandoning that approach with respect to VoIP originating access and subjecting
carriers to ICC revenue losses with at best an uncertain possibility of future relief.

8 The recovery mechanism sets an Eligible Recovery baseline using 2011 revenues and provides for a 10% reduction of that amount each year, rather than requiring annual “true-up” adjustments to reflect variations in the actual volume of traffic. Order ¶879(JA__).

30Appellate Case: 11-9900 Document: 01018964883 Date Filed: 12/10/2012 Page: 39
Indeed, the FCC did not even commit to consider a recovery mechanism in
some further rulemaking. After rejecting a recovery mechanism, the FCC asserted
in the next sentence that “[r]elated issues, such as . . . the elimination of equal
access obligations,” are “more appropriate for consideration in the context of a
rulemaking proceeding.” Second Reconsideration Order ¶35 n.97(JA__) (empha-
sis added). But that statement refers only to “related issues” and does not promise
implementation of the requested and denied recovery mechanism. The statement is
also nonsensical; it fails to appreciate that the FCC was already engaged in “a
rulemaking proceeding”—and a comprehensive one at that.
Simply put, the FCC cannot—consistent with reasoned decisionmaking—
repeatedly emphasize the necessity of gradual transitions, revenue recovery, and
certainty; implement those measures for one type of access; but then refuse to
adhere to the same principles for another without explaining that departure.

CONCLUSION

This Court should vacate the FCC’s rule reducing intrastate VoIP originating
access and remand with directions to pair any reduction with a recovery mecha-
nism or, at the very least, to provide a reasoned explanation for its chosen course.

1.
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B)(ii) and this Court’s October 1, 2012 Order establishing a briefing
schedule in Windstream’s case because this brief contains 6,993 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
2003 in Times New Roman 14-point font.

I hereby certify that, on December 10, 2012, per this Court’s order of
October 17, 2012, I caused the foregoing document to be electronically filed with
the Court via e-mail. This document will be served on all parties in this case by
the Notice of Docket Activity upon the Court’s docketing of the brief in the
CM/ECF system.

I hereby certify that with respect to the foregoing:
1. All required privacy redactions have been made.
2. Hard copies of this Uncited Brief are not required to be submitted to
the Clerk’s office.
3. This ECF submission was scanned for viruses with the most recent
version of Windows Intune Endpoint Protection (version 1.141.1505.0, updated December 10, 2012) and, according to the program, is free of viruses.

December 10, 2012

/s/ Jeffrey A. Lamken

Jeffrey
A.
Lamken

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